[3] Levant is a journalist, political commentator and a lawyer. Since early in 2008, he has been engaged in a public campaign to abolish the prohibition against hate speech toward an identifiable group, as set out in section 13 of the Canadian Human Rights Act, As part of this campaign he has sought to denormalize the CHRC and other provincial Human Rights Commissions across the country.

[4] Unfortunately, Vigna became part of Levant’s campaign to denormalize the Human Rights Commissions when he sought an adjournment of a hearing on the grounds that he was not feeling well stating he was not in a “serene state of mind”. Vigna did not advise the Tribunal that the reason he was not feeling in a “serene state of mind” was because he had been threatened the previous evening, had received notice that Mr. Lemire had filed a complaint with the Barreau du Quebec alleging he acted unethically, and had learned that the two security personnel at the hearing had been followed to their homes, and as a result he had not slept the previous night.

[5] Levant submits that he was exercising his right of free expression as guaranteed by section 2(b) of the Canadian Charter of Human Rights and Freedoms when he published the statements. He further submits that his statements are protected by the defences of responsible communication on a matter of public interest; fair comment; justification; and qualified privilege.

Available Defences

Smith J. assessed a number of blog posts by Levant, and determined whether he could rely s. 2(b) of the Charter, or on a number of established defences, including justification, fair comment, qualified privilege, or the Grant defence of responsible communication on a matter of public interest.

Although Levant conceded that the blog posts constituted a publication for the purposes of defamation, the court made special mention of blogs as described in Grant,

Applicability to Blogs
[31] At paragraphs 96 and 97 of the Grant v. Torstar, supra, decision, the Supreme Court held that the new defence of responsible communication on matters of public interest was applicable to blog postings and other online media.

[32] The Supreme Court agreed with Lord Hoffman in Jameel v. Wall Street Journal Europe SPRL, [2005] EWCA Civ 74, [2005] 4 All ER 356 at paragraph [54] who held that the new defence was “available to anyone who publishes material of public interest in any medium.”

[33] I therefore find that the laws of defamation including the defence of responsible communication on matters of public interest apply to the articles written by Levant and posted on his internet blog.

The defences were not accepted in relation to a number of other postings relating to Vigna’s illness, allegations of misleading the Tribunal, and that Vigna had been fired by the Tribunal. Levant did not have special medical expertise, and his statements were not consistent with the facts found in the Tribunal transcript of proceedings [para. 122]. Although the Tribunal was a public body, and Levant’s comments could not be considered in the public interest as they did not accord with the facts [paras. 65-70, 100-101]. But Smith J. rejected several other allegations of defamation related to other blog postings, finding that several common law defences did apply.

Smith J. also commented on Levant’s failure to consult with Vigna, which could project new responsibilities for bloggers who write potentially defamatory statements,

(v) Was the Plaintiff’s Side of the Story Sought?
[8I] Vigna testified that Levant never contacted him to get his side of the story before publishing the above blogs. Levant acknowledged that he never contacted Vigna but testified he tried to contact Vigna by calling the Commission. Levant has not pleaded that he attempted to contact Vigna before publishing his blogs and produced no telephone records or any other evidence to corroborate any attempt to speak with Vigna to verify if he had provided a medical certificate to the Tribunal. Levant’s evidence in this regard was very general and non specific. I do not accept his evidence in this regard and find that he did not make a serious effort or take reasonable steps to contact or communicate with Vigna to get his side of the story. Levant did not leave a voice message for Vigna, and did not send a letter, fax or e-mail to Vigna to obtain his side of the story. Given the total lack of urgency, Levant should have sought Vigna’s side of the story before publishing the defamatory statements.

[82] I find that Levant did not contact Vigna to obtain his side of the story because he wanted to use Vigna’s unusual words in requesting an adjournment as part of his campaign to discredit and denormalize the Commission. He did not want to check the facts as a responsible journalist would have done because this would interfere with his opportunity to ridicule the Human Rights Commission.

[83] If he had contacted Vigna to inquire if he had fulfilled his undertaking to the Tribunal, Vigna would have confirmed that he had complied by providing a medical certificate. This would have continued that Vigna was telling the truth when he told the Tribunal he was too ill to proceed on May II, 2007. Contacting Vigna would have been the fair thing to do in the circumstances especially given the seriousness of the allegations and the complete lack of urgency as 11 months had already gone by.

Smith J then assessed whether Levant’s posts could rely on fair comment, which he would not be able to rely upon if there was malice present,

[131] I find that Levant did not know that the statements he published about Vigna were false, and his dominant purpose was not to injure Vigna. His dominant purpose was to denormalize Human Rights Commissions and the method he used was to attack Vigna’s conduct in seeking an adjournment of the Tribunal hearing. Seeking to reform sections of the Human Rights Legislation is not an improper purpose as the issue is one of political debate, but I find that Levant had an ulterior purpose in publishing defamatory statements about Vigna, which was to denormalize Human Rights Commissions.

[132] I also find that Levant acted with reckless indifference as to whether his statements about Levant were true or false, because he obtained no independent medical evidence, did not write, e-mail, fax or speak with Vigna, the Tribunal or the Commission to verify his allegations that Vigna had fibbed to the Tribunal, or had failed to comply with his undertaking. I also find that Levant was reckless in the manner that he read the transcripts as they confirm that Vigna did send medical certificates to the Tribunal within three days but on the condition they remain confidential.

[133] I therefore find that Levant spoke in reckless disregard of the truth and for an ulterior purpose of denormalizing the Human Rights Commission across Canada which makes his statements malicious in that sense.

Damages Assessment

Given that Vigna was not the ultimate target of Levant’s posts, Smith J. did not award punitive damages [para. 135]. In assessing damages, the court looked at the size of Levant’s blog and his audience using the number of comments as a gauge [para. 137]. Based on Myers v. Canadian Broadcasting. Corporation, [1999] O.J. 4380, damages should reflect the size and nature of the audience. However, as many of us online know, comments can be an extremely poor measure of web traffic and readership, and certain demographics online tend to comment more than others, so I personally question this approach of gauging audience.

Although no evidence was advanced by Vigna indicating personal suffering or problems as a result of the statements in question, Smith J. did cite McElroy v. Cowper-Smith to indicate that defamation of a professional does warrant significant damages [paras. 138-139]. Smith J. also offered some ethical rebuke for the use of blogs in this manner by a member of the legal profession,

[140] The fact that Levant is a lawyer is an aggravating factor as he either knew or should have known that continued ridiculing of another lawyer using the internet, and accusing another lawyer of fibbing to the Tribunal, of acting with contempt and acting unethically before a Tribunal, without making a diligent inquiry to verify that his facts were accurate and true, and when he used the manner in which Vigna requested an adjournment in order to further his objective of denormalizing Human Rights Commissions was defamatory conduct. He also continued to republish the same inaccurate statements after he was given notice they were considered defamatory and he was asked to stop.

Damages were assessed at $25,000, with an order to remove the blog posts in question.

Comments

Very interesting application of the rules of responsible communication in the public interest to a blog. It is a good question whether public interest advocacy has to be as even-handed as public interest reporting.

I find it odd how frequently the judge uses what I consider the jargon term ‘denormalize’ to describe what Mr Levant was trying to do with respect to the Commission. Presumably that means that he was trying to persuade people to look at the Commission with a different eye, not to assume that it was a ‘normal’ body to have, or that its role re expression was ‘normal’. In that sense, it seems to me a perfectly legitimate goal, and no different in meaning than ‘seeking to reform sections’ of the legislation, which the judge thought was OK. One may not be able to rally support for reforming parts of legislation without shaking people’s belief in the usefulness of the legislation, or the parts of it under attack.

In short, I think ‘denormalization’ can be legitimate comment on a matter of public interest. Defaming an employee of the body that one seeks to ‘denormalize’ is not necessary to success, however, and can come across as petty – not to mention be actionable.

The trial took place on 6 days in the Supreme Court of Ontario. Some might wonder why it took that long. Be that as it may, the award was $25,000. It seems not to have been a summary procedure trial. Costs still have to be decided. Given costs offers, if any, and the new proportionality requirements, tt may turn out that Vigna’s victory is pyrrhic even if Levant doesn’t appeal.

The principles applied toward the finding of defamation, in the context of a blog, were not particularly unique to this case; however, it will be interesting to see how assessments for damages in such situations will evolve with the case law. Indeed, the consideration of comments as a gauge of blog popularity is a somewhat unreliable factor. It seems likely that Canadian courts will evolve a more consistent and reliable framework for assessing defamatory damages arising out of blog postings.